Equitable Distribution

April 2, 2018

Non-Marital Assets and Liabilities in Florida Divorces

Non-marital assets and liabilities are defined in Florida Family Law as 1) assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2) Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets; 3) All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset; 4) assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets. See Fla. Stat. § 61.075(6)(b)(1-4).

In a dissolution of marriage case, the court must set apart each spouse’s non-marital assets and liabilities and marital assets and liabilities and must begin with the premise that the distribution should be equal absent justification for unequal distribution pursuant to factors under the statute. See Fla. Stat. § 61.075(1). Assets acquired before marriage are not marital assets and remain the property of the owner spouse in the absence of evidence of a gift or conveyance of the assets to the owner’s spouse. See Moss v. Moss, 829 So.2d 302 (Fla. 5^th DCA 2002); see also Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Essentially, the court in Horton v. Horton, 433 So.2d 1386 (Fla. 5^th DCA 1983) stated:

“When a marriage partner brings his or her own property to the marriage and does not make a transfer of the asset or any portion of it to the spouse then that asset remains separate property. Upon dissolution of the marriage the asset is still owned by the original owner. Unless the asset, or a portion of it, is awarded as lump sum alimony then the court must recognize the proper ownership of the property and not take it from the owner.”

January 29, 2018

Property During A Divorce in Florida – How Do You Handle It?

by David M. Goldman

What happens to real estate or property that you jointly own when you get a divorce in Florida? How does the Court handle your property when you and your spouse can’t agree on what to do? How can it be distributed between you and your spouse? In divorces, the court will partition your property absent an agreement as to the contrary. Partition means simply “to divide into parts.”

The Court cannot order partition of your property without it being alleged in your dissolution of marriage petition. Florida courts have long held that a judge may partition the jointly-owned property of the parties in a divorce action only if the due process requirements of Chapter 64, Florida Statutes, relating to partition are met. See Sanders v. Sanders, 351 So.2d 1156 (Fla. 2^nd DCA 1977). The complaint for partition can be incorporated into a divorce petition and no separate filing is needed. F.S. § 64.041 specifies that the complaint must allege a description of the property, the names and places of residence of the owners, and the share held by each owner. The partition complaint must be filed in the county where the property is located.

Typically, the parties will agree on a real estate broker to list the property for sale at current fair market price and the parties will split the proceeds according to the parties’ interest in the property (taking into account the costs and expenses put into the property) unless an agreement is made for one party to refinance the home and pay the opposing party their share. After a divorce, property automatically converts into a tenancy in common and each owner has the right to sell, lease, or mortgage their interest in property. See F.S. § 689.15.

December 18, 2017

Considering Business Income in Divorce Cases in Florida for Equitable Distribution

by David M. Goldman

You may wonder how Florida courts make a decision on what is income and what is not in divorce cases. In addition, you may wonder how business income is considered in divorce cases by the courts. The case of Marchek v. Marchek, 159 So.3d 1025 (2^nd DCA 2015) gives a great example of what can be considered income, especially when it comes to business income. In this case, the husband appeals a final judgment of dissolution of marriage to his wife. The court reversed an equalizer payment of $35,777 to the wife because there was not competent, substantial evidence supporting the court’s valuation of the business income.

The husband was an electrician that owned an electrical contracting business where the wife worked handling much of the administration such as bookkeeping, payroll, and accounts receivable for a time. As of the trial date, the business had a pending job for which it billed $100,000 and accounts receivable of $40,000, some of which stemmed from the pending job.

The problem was the $100,000 for the pending job was the gross amount for the job, NOT a net amount. The $40,000 accounts receivable figure was the amount the business had already received including the $100,000 job and any others from that same year, and the figure was still only a gross amount, not a net amount.

November 3, 2015

Divorce: Splitting Marital Debt

by David M. Goldman

Marriage has long been described as the union of two people, which in the end gives rise to solidarity of purpose and existence, creating one stronger unit. With the emphasis put on the union, you can imagine that undoing the union is serious business. During divorces, emotions run high for different reasons. The financial aspect of ending the marriage relationship is high on the list of stressors. For example, if a household brings in $100,000 per year between the husband and the wife, splitting that income in two and trying to maintain the same standard of living is hard to to do. As a Jacksonville divorce lawyer, I’ve encountered this dilemma many times. Intertwined in the issue of income splitting is the issue of dividing marital debt (and marital assets, but in this article the focus will be on marital debt).

Marital Debt

According to Florida Statute 61.075, “All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as non-marital assets or liabilities are presumed to be marital assets and liabilities.” In other words, both parties are responsible for debt created by one or both of them, unless it can be shown that one of them should be solely responsible for the debt. This means proving that it is non-marital debt. The person who wants the debt to be considered non-marital debt has the burden to prove that it is non-marital debt.

September 14, 2015

Settlement Agreements in Divorce Cases

by David M. Goldman

Most people have had buyer’s remorse from time-to-time. The moment a person realizes he or she has made a bad deal can be very disappointing. As a Jacksonville divorce lawyer, I can tell you that settlement agreements in divorce cases can leave a person feeling the same way. Marital settlement agreements can be used to resolve any issue in a divorce case. Some subjects, like custody or time-sharing, may have to be approved by the court before being made a part of the final divorce decree. Child support, for example, that is normally based on guidelines can be more than what the law requires, if both parties have agreed to it. A father that has agreed to pay $200 additional in child support per month will typically be stuck with the terms of the agreement he signed.

Florida courts have long held that a signed settlement agreement in divorce cases will bind both parties. This is so, because courts prefer people to work the cases out themselves, rather than rely on the court to solve problems through litigation. Jacksonville divorce lawyers would all hope that their clients won’t enter into agreements without the divorce lawyer having an opportunity to review and advise the client about the agreement, but divorce lawyers are sometimes faced with having to search for ways to get a client out of a settlement agreement the lawyer was not involved in. Unless certain circumstances exist, a person is bound by a signed settlement agreement in divorce cases. Things that can make a settlement agreement unenforceable include fraud, duress, misrepresentation, and overreaching.

For example, a situation where a husband threatened to turn his wife and her business partners in to the IRS unless she signed the marital settlement agreement was found to be duress, and the agreement was set aside. Where one party has lied about what assets are available, courts are likely to invalidate those agreements, as well. Experienced Jacksonville divorce lawyers at the Law Office of David M. Goldman, PLLC can help you maneuver through the issues in your divorce case. Free consultations are available. Call us today at (904) 685-1200.

June 22, 2015

Divorce and Bankruptcy in Florida

by David M. Goldman

Separation and Bankruptcy in Florida: Can I file without my spouse if we are separated?

In addition to being emotionally draining for most people, divorces can cause a myriad of issues with the most substantial problems being financial issues. Sometimes couples split, but don’t legally divorce. Some states recognize legal separation, but Florida does not. Living separately from your spouse while still being married is fine, but in Florida it does not have any special legal recognition. When an individual who is simply living separate from his or her spouse (or is going through a divorce) considers bankruptcy, they often want to know if they can proceed with a bankruptcy without involving their spouse.

The current bankruptcy laws allow a debtor to file an individual bankruptcy regardless of whether he or she is married or in the process of getting a divorce. A debtor is allowed to file a joint or individual bankruptcy during a marriage or during an ongoing divorce. Generally, when a person is married and filing bankruptcy, either individually or jointly, the income of both spouses determines what type of bankruptcy a debtor can file; either a Chapter 7, 13 or 11. This is known as household income in bankruptcy. Even if only one spouse is filing bankruptcy, the income of the other non-filing spouse will be taken into consideration and must be disclosed to the trustee and court.

May 4, 2012

Equitable Distribution = What is Equal?

by David M. Goldman

Whether or not an asset is “marital” or “nonmarital” is often a key issue in a divorce. Marital assets are generally considered jointly owned by both husband and wife, and it is usually up to the court to decide how those assets will be distributed. Nonmarital assets, however, are considered owned by only one of the spouses and are generally free from distribution in a divorce. You should be aware that liabilities –debts– are treated the same way as assets.

Florida Statute 61.075 addresses this issue and defines marital and nonmarital assets. Marital assets include assets acquired during the marriage, the increase in value of nonmarital assets (if the increase is the result of contribution from both spouses), interspousal gifts during the marriage, and all benefits accrued during the marriage, such as retirement funds, pension, profit sharing, and insurance plans.

Nonmarital assets include assets acquired prior to the marriage, assets acquired during the marriage by gift or inheritance, assets excluded from being considered marital by written agreement (such as a prenuptial agreement), and income derived from nonmarital assets, unless the income was “treated, used, or relied upon by the parties as a marital asset.”

April 6, 2012

Bubba the Love Spounge’s Alimony Obligation to Ex Wife

by David M. Goldman

In September 2011, after 4 1/2 years of marriage shock jock, Bubba the Love Spounge Clem, filed for divorce from his wife, Heather Dawn the Love Spounge Clem, stating the marriage was “irretrievably broken and should be dissolved.” With Bubba having a net worth estimated to be in the millions one would think that the divorce would be highly contested. Not to mention the fact that Bubba is known for making harsh and outrageous comments that often end up stirring up controversy.

However, prior to the 2007 nuptials the parties entered into a prenuptial agreement. And as of a February 13th settlement agreement it appears as though the parties’ assets were divided up pursuant to the prenuptial agreement. Bubba’s now ex wife will receive $1,150 a month in alimony payments lasting for a total of 56 months. She also will receive a one time lump sum payment of $20,000.

Further, both parties agreed, “not to interfere with, annoy, molest or harass the other party or disparage the other party in public,” with special mention made of speaking “on air” about each other. Bubba even went to his twitter account to urge his followers not to disparage his now ex wife.

April 6, 2012

Who Gets the Dog in a Florida Divorce?

by David M. Goldman

When couples divorce people expect to hear about fights over who gets what car, who gets what house, etc… However, more and more divorcing couples are fighting over the family dog. Both Britney Spears and Drew Barrymore battled over custody of their respective pooches when divorcing. This is to be expected though, since families seem to now consider their pets as integral parts of their family.

I myself, as a Neptune Beach Divorce Attorney, have seen numerous divorcing clients fight for custody of their dog. But the problem is Florida law views pets as chattel or personal property. For the most part Florida judges typically will not view a family pet as a member of the family, but will instead view Fido as nothing more than personal property, such as a car or boat, that needs to be equitably divided. Currently, only four states (California, Illinois, Maine & New York) view pets as more than personal property, but not in every circumstance.

Here at Law Office of David M. Goldman we are all dog lovers and even bring our dogs to the office on Fridays. My dog Lily is even pictured above. So should you live in the Neptune Beach or surrounding area and are seeking a divorce but don’t want to give up your dog contact a Neptune Beach Divorce Attorney today to schedule a free consultation.

March 27, 2012

Is Your Spouse Hiding Marital Assets During Your Divorce?

by David M. Goldman

A few weeks ago a report came out that Dmitry Rybolovlev, one of the 100 richest people in the world, had been accused of hiding close to $100 million dollars during his divorce. If you are in a situation involving such incredible wealth, you should seriously consider a prenuptial agreement, which a Jacksonville, Florida Family Law Attorney or a Jacksonville, Florida Asset Protection Attorney can help draw up for you.

However, even if you are not on the Forbe’s richest list, you obviously do not want your spouse to hide assets during your divorce. This can negatively affect division of other assets, which would not be good for you. Plus, this would be fraudulent to the court. But how do you know when your spouse is hiding assets? A recent Forbes article outlines some of the red flags. Many of the tips are somewhat obvious, but may be difficult to see unless you are looking at it from an outside prospective. Here are some tips and warnings to look for:

If your spouse maintains total control of your joint bank account information, make sure you keep track of the bank statements. Most banks have online services, so you should be able to monitor it from there. If your spouse denies you access to the password, but your name is nevertheless on the account, go to your bank and ask for a statement.